Supreme Court on Legalisation of Same-Sex Marriages: A Battle Between 10 and 10,000
- Posted on April 19, 2023
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- By Top Stories
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Supreme Court on Legalisation of Same-Sex Marriages:-
A 5-judge bench of the Apex Court, comprising CJI DY Chandrachud, Hima Kohli J., PS Narasimha J., SK Kaul J., and S Ravindra Bhatt J., heard the matter related to the legalization of same-sex marriages on Tuesday, i.e., on the 18th of April, 2023.
The discussion turned out to be an unorganized exchange of opinions. While the Solicitor General Tushar Mehta, representing the Centre, continuously raised objections as to whether the Supreme Court was the correct forum to address the issue, petitioners’ advocate Mukul Rohatgi pressed that the Supreme Court is the undisputed forum for the issue since the case involves a breach of fundamental rights of his clients.
Arguments by Mukul Rohatgi on Behalf of the Petitioners
Mr. Rohatgi carried the house through a series of judgments. A prominent citation was the KS Puttaswamy which declared the “right to privacy as part of the right to life.” Drawing reference to the Supreme Court’s 2018 Navtej Singh Johar case, Rohatgi pressed that it is not the 1920s that LGBTQ members must remain satisfied with only the decriminalization of sexual activities.
Rohatgi even went a step ahead to bring in a cultural justification on the issue by expressing, “Lord Ayyappa was born to the union of two male gods — Shiva and Vishnu (as Mohini).”
Reasoning Provided by Solicitor General Tushar Mehta in Defence
Mehta expressed that the issue essentially involves a question of legislation, and hence, only the Parliament is the correct forum, not the Supreme Court. Regarding the merits of the case, Mehta contended that the institution of marriage essentially involves only binary sexes.
When the question of referring to “man” and “woman” in the Special Marriage Act as “spouse” came up, Mehta opined that the expression “man” and “woman” is based on genitals and no other standard to identify gender and thus, the terminologies of the statute must remain binary.
Analysis
The Supreme Court bench led by the liberal CJI Chandrachud expressed its inclination towards accepting gender fluidity in the Special Marriage Act. The CJI said, “There is no absolute concept of a man or an absolute concept of a woman at all. It’s not the question of what your genitals are. It’s far more complex; that’s the point. So, even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute.”
The rights of the queer cannot be neglected just because it is a fight of 10 versus 10,000. The points raised by the Centre on the issue are all related to procedural defects that would arise after the legalization of same-sex Marriages, however, merely because enforcing a right would bring in procedural tediousness does not mean that the right must be extinguished.
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